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Friday, June 19, 2015

Supreme Court: No Free Speech for License Plates

In March, Secular Pro-Life reported that the Supreme Court had held oral argument in Walker v. Sons of Confederate Veterans, concerning the state of Texas' decision to prohibit a license plate with the Confederate flag on it. Presumably the prohibition was based on the racist history and symbolism of the Confederate flag... except that, in a classic case of right-hand-doesn't-know-what-the-left-hand-is-doing syndrome, Confederate flags are sold in the Texas Capitol gift shop.

The more important point, though, is that freedom of speech requires us to tolerate noxious messages. Even Westboro Baptist Church has First Amendment protection. It's the price we pay for the right to speak truth to power and speak freely about the things that matter, including the life-or-death issue of abortion.

Walker was an important case to watch, then, because of the potential impact on pro-life speech. As we noted back in March:

The Supreme Court is finally weighing in because license plate cases come up fairly often. Many of those cases concern "Choose Life" plates.

If the voice of the license plate is that of the government, only motorists in pro-life states will be able to obtain Choose Life plates. States hostile to the preborn will continue not to offer the plate, or will stop offering it.

But if the voice of the license plate is that of the motorist, Choose Life plates should become available in all 50 states. According to Choose-Life.org, pro-life plates are currently available in 27 states and the District of Columbia; approval is being sought in another 15 states; and the plates are tied up in court in New York and North Carolina.

This isn't just a matter of protecting pro-life speech from censorship, as serious an issue as that is. To date, Choose Life plate sales have raised more than $21 million for pregnancy resource centers. If the Court rules in favor of the SCV, that number could grow tremendously.

Just a few weeks ago, the Second Circuit Court of Appeals issued a terrible decision against Choose Life license plates, declaring that the pro-life message could be censored because it is "patently offensive"—a legal term usually reserved for hard-core pornography. We expressed hope that the Court's decision in Walker would lead to a quick reversal of the Second Circuit.

We now have our answer. The Court has, in a 5-4 decision, rejected the free speech argument. States have the authority to ban license plates based on disagreement with the content. Legally it will be treated as though the state government, not the vehicle owner, is conveying a message.

[T]he decision will likely have serious ramifications for the abortion debate. One federal court has already allowed a liberal state to ban "Choose Life" license plates while permitting pro-choice license plates. Conservative states will likely begin to do the opposite—banning pro-choice plates while permitting anti-abortion ones. That doesn't look like government speech in action. It just looks like censorship.

The better approach is the one Virginia took in 2010: if a plate is going to say "Trust Women," then the proceeds must go to an organization that actually trusts women, and not an organization like Planned Parenthood that opposes informed consent.

But even if pro-life states were inclined to take the low road and censor opponents of the right to life, there would be no point; pro-abortion plates have only been attempted in a few states, and they've proven to be a huge dud. The bigger concern is what the Supreme Court's decision means for Choose Life plates and the families who rely on their revenue.